Assessment of Facts, Deference, De Novo, Interpretation of Laws, Objective Assessment
The determination of the standard of review to be applied in World Trade Organization (WTO) for dispute settlement is a matter of significant concern in anti-dumping cases. Article 17.6 of the Anti- Dumping Agreement seems to limit the scope of review to the determination of element of bias and objectivity in the findings of facts by the national authorities. Moreover, if any provision of the Anti-Dumping Agreement is capable of having more than one meaning under the customary rules of interpretation, the adjudicating bodies should not find the interpretation of the national authorities as incorrect if it fits within the ambit of one of the permissible interpretations. Hence, the scope of review by the WTO dispute settlement bodies is argued to be limited under the provision (deference approach). However, on the contrary, it is argued that such a limitation would go against the higher norm of objective assessment by the WTO panels under the mandate of Article 11 of the Dispute Settlement Understanding (DSU). In light of this, a case for a de novo approach is also argued by a section of scholars. Unfortunately, the approach of the WTO adjudicating bodies in this regard is not consistent. While in some cases, strict adherence to deference review is made under Article 17.6 of the Anti-Dumping Agreement, this rule is diluted in other cases. Hence, there is a need to bring clarity on the approach to be adopted at the WTO level in reviewing anti-dumping cases.